SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-0777- 22 KATHLEEN SERVIS, f/k/a HALAKA, Plaintiff-Appellant/ Cross-Respondent,

v. GAMAL HALAKA, Defendant-Respondent/ Cross-Appellant.

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Submitted March 18, 2024

– Decided August 21, 202 4 Before Judges Berdote Byrne and Bishop-Thompson. On appeal from the Superior Court New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FM- 10

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- 07. Pellettieri Rabstein & Altman, attorneys for appell ant / cross-respondent (John A. Hartmann, III, of counsel and on the briefs; Nicole J. Huckerby, on the brief s). Kozyra & Hartz, LLC, attorneys for respondent/cross

appellant (Judith A. Hartz, of counsel and on the b rief; Ronald J. Herman, on the brief).

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on t he internet, this opinion is binding only on the parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 0777

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PER CURIAM In this post judgment matrimonial matter, plaintif f Kathleen Servis f/k/a Kathleen Halaka appeals a September 30, 2022 order terminating her alimony and denying counsel fees. Defendant Gamal Halaka c ross-appeals from the same order, arguing the trial court erred in not te rminating alimony effective as of his retirement date of September 30, 2022 and de nying counsel fees. After a careful review of the record , and in light of the prevailing legal standards, w e affirm the challenged order substantially for the r easons expressed in Judge William G. Mennen's well-reasoned and comprehensive opinions.
I. The parties are fully familiar with the procedural history and facts of this case and only the salient facts re set forth herein . We need not reiterate the facts and procedural history and instead rely upon Judge Mennen's factual findings, which are incorporated herein by reference. The parties were married in March 1987 and have two children. Defendant was initially employed as a physical ther apist with a medical group. Plaintiff has an associate's degree and earned $18, 000. In 1990, defendant started his own physical therapy practice. Shortly thereafter, plaintiff became a stay- at -home mother.3 A- 0777

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A Final Judgment of Divorce (F JOD) was entered on March 9, 2009

. Plaintiff was awarded $82,642 from the sale of the marital home , $110,000 from
defendant's SEP- IRA , and $30,000 as her share of defendant's business

. Defendant was ordered to pay $4,583.33 per month in permanent alimony to plaintiff and $40,000 in counsel fees. Defendant appealed the portion of the FJOD that awa rded plaintiff permanent alimony and counsel fees and obligated him to pay a greater share of the marital debt. W e reversed the alimony award and remanded for

re consideration of alimony but affirmed the FJOD in all other aspects. Halaka v. Halaka , No. A-3619-08 (App. Div. May 10, 2010) (slip op. at 1)

. Thereafter,

a n amended FJOD was entered on May 31, 2013, which red uced defendant's permanent alimony obligation to $2,606 per month ef fective June 16, 2010. From 2009 through September 2022, defendant paid pl aintiff more than $415,000 in alimony. Defendant was previously diagnosed with carpal tun nel syndrome and osteoarthritis in his hands. According to defendan t, he experienc ed pain in his wrist and finger joints, especially after providing physical therapy to his patients. At the time of his application, defendan t experienced cramping and pain with daily activities. Defendant argues that b ecause of his declining health4 A- 0777

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and having reached full retirement age as of July 1 5, 2021, he closed his business and retired with full social security benefits

. In a June 15, 2022 letter , defendant notified plaintiff that he intended to retire by the end of September 2022 and requested t hat plaintiff sign a consent order terminating his alimony obligation following his retirement. Plaintiff refused to sign the proposed consent order but expr essed interest in reaching a resolution without court intervention. The parties then exchanged three years of tax returns and their case information statement s (CISs). Plaintiff requested additional financial documents regarding defendant' s business but none were provided

. After failing to reach an amicable resolution, def endant moved to terminate alimony based on his September 30, 2022 r etirement and sought an award of counsel fees. In his moving certification , defendant asserted that the sole source of income after the closure of his practice wa s his $3,122 per month Social Security benefit. Excluding his alimony obl igation, defendant's Schedule A, B, and C expenses total ed $7,014. He had two assets: a SEP-IRA, which was distributed at the time of divorce and $518,000 in a brokerage account. Defendant had only $200,000 in assets after subtrac ting the value of the brokerage account and excluding the SEP-IRA from th e ability to pay alimony5 A- 0777

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calculation. Defendant also had considerable debt in the amount of a $280,000 Small Business Administration loan and $34,000 in c redit card debt. In response, plaintiff cross-moved, seeking a denial of defendant's motion

or , in the alternative, discovery , a plenary hearing, and an award of counsel fees. Plaintiff certified that she received $3,117 per mo nth in alimony , $1,720 per month from her employment at a car dealership , $1,007.80 per month from Social Security spouse benefits, and $140.10 per mo nth from an annuity. Plaintiff also received $250 per month from her son who lived with her. Plaintiff's monthly Schedule A, B, and C expenses t otal ed $5,424.00 per month. Plaintiff had approximately $23,000 in a brokerage account and two bank accounts that total ed $11,000. Following oral argument, Judge Mennen rendered an o ral opinion and issued a supplemental statement of reasons on Septe mber 30, 2022 , granting defendant's motion to terminate plaintiff's alimony . In finding that defendant established a "good faith retirement, " the judge ordered the termination of defendant's alimony obligation with a n eight-month step- down : effective November 1, 2022, plaintiff's alimony was reduced t o $1,500; effective February 23, 2023, plaintiff's alimony was reduced to $750 per month; a nd effective June 1, 2023, plaintiff's alimony was ter minated.6 A- 0777

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In his comprehensive opinions, Judge Mennen address ed each of the factors set forth in N.J.S.A. 2A:34-23(j)(3). He also reviewed plaintiff's ability to have adequate ly sav ed for retirement, found that the financial responsib ilities associated with the parties' children were addresse d in the amended FJOD, and noted the marital assets distributed to plaintiff. Judge Mennen then determined defendant's retirement was a "significant change in ci rcumstances" warranting a modification, ultimately terminati ng "in accordance with the step-down approach. " In considering plaintiff's cross-motion, Judge Menn en concluded the re were no genuine issues of material facts to be reso lved by a plenary hearing. The judge reasoned that the conflicting certificati ons of the parties were "conclusory," "not factual," and "largely contested [d]efendant's conclusions of law."
II. On appeal, plaintiff raises three arguments. First , the judge erred in terminati ng defendant's alimony obligation because he failed to meet his burden of proof by a preponderance of the evidence. Secon d, the judge erred in not conduct ing a plenary hearing. Lastly, the judge erred in not awarding counsel fees.7 A- 0777

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In his cross-appeal, defendant contends that the tr ial judge erred by not terminating his retirement on September 30, 2022, t he effective date of his retirement. Defendant further contends that the ju dge erred by not awarding counsel fees. Our review of a Family Part judge's findings is li mited. We "afford substantial deference to the Family Part's findings of fact because of that court's special expertise in family matters." W.M. v. D.G. , 467 N.J. Super. 216, 229, (App. Div. 2021) (citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)). "Under that deferential standard of review, we are bound t o uphold a finding that is supported by sufficient credible evidence in the re cord." Moynihan v. Lynch , 250 N.J. 60, 90 (2022)

. "We will reverse only if we find the [court] clear ly abused [its] discretion." Clark v. Clark, 429 N.J. Super. 61, 72 (App. Div. 2012). We apply that deference to a Family Part judge's de cision regarding a motion to amend a marital-support obligation. Card ali v. Cardali, 255 N.J. 85,
107 (2023); see also Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006) ("Whether [a support] obligation should be modified . . . rests within a Family Part judge's sound discretion."). Thus, a Family P art judge's decision regarding a support obligation should not be disturbed unless "the court made findings inconsistent with the evidence or unsupported by th e record, or erred as a matter8 A- 0777

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of law." Reese v. Weis, 430 N.J. Super. 552, 572 (App. Div. 2013). We review questions of law de novo. Amzler v. Amzler, 463 N. J. Super. 187, 197 (App. Div. 2020). An alimony order establishes only the present suppo rt obligation and is "always subject to review and modification on a sho wing of 'changed circumstances.'" Cardali, 255 N.J. at 93 (quoting Lepis v. Lepis, 83 N.J. 139, 146 (1980)); Crews v. Crews, 164 N.J. 11, 28 (2000). An alimony order "may be revised and altered by the court from time to ti me as circumstances may require." N.J.S.A. 2A:34- 23; Amzler, 463 N.J. Super. at 197.
Pursuant to Crews , the judge undertakes a two-step inquiry when a part y moves for the reduction or termination of alimony

. 164 N.J at 28. The judge must first determine whether the moving party has m ade a prima facie showing of changed circumstances

. R.K. v. F.K., 437 N.J. Super. 58, 62 (App. Div. 2014) ; Cardali, 255 N.J. at 101. The moving party must demonstrate a change in circumstances from those existing when the prior support award was fixed. Beck v. Beck, 239 N.J. Super. 183, 190 (App. Div. 1 990); see also Donnelly v. Donnel ly , 405 N.J. Super. 117, 127-29 (App. Div. 2009). The second step requires that "the party seeking mo dification of an alimony award 'must demonstrate that changed circum stances have substantially9 A- 0777

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impaired the [movant's] ability to support himself or herself.'" Crews, 164 N.J. at 28 (quoting Lepis, 83 N.J. at 157). "[T]he abil ity to support oneself must be understood to mean the ability to maintain a standa rd of living reasonably comparable to the standard enjoyed during the marri age." Ibid.
A. After a review of the record and the applicable gov erning principes, w e conclude plaintiff's arguments lack merit. We are satisfied the judge did not abuse h is discretion in finding defendant had established a change in circumstances based on his good faith retirement. We therefore affirm the order substantially for the reasons expressed in the coge nt opinions. We add the following brief comments regarding plaintiff's cont ention concerning discovery and the plenary hearing. We "generally defer to a trial court's disposition of discovery matters unless the court has abused its discretion, or its determination is based on a mistaken understanding of the applicable law." Pom erantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011) (quoting Rive rs v. LSC Partnership, 378 N.J. Super. 68, 80 (App. Div. 2005 ). After a party seeking an alimony modification has m ade a prima facie showing, "a court may order discovery and hold a hearing to determine the10 A- 0777

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supporting spouse's ability to pay." Miller v. Mil ler, 160 N.J. 408, 420 (1999). "Although equity demands that spouses be afforded a n opportunity to seek modification, the opportunity need not include a he aring when the material facts are not in genuine dispute." Lepis, 83 N.J. at 159

. However, when a party has "clearly demonstrate[d] the existence of a genuine issue as to a material fact," a hearing is necessary. Ibid. Applying that well -settled standard, we discern no abuse of discretion in any of the judge's rulings r elating to discovery and the plenary hearing. Plaintiff's opposing certificatio n did not present any genuine issues of material fact. Moreover, plaintiff did n ot refute defendant's medical diagnosis. Therefore, the judge correctly found th at discovery would not have been helpful , would have served to "erode the parties' limited re sources," and that there was no factual dispute regarding the bas is for defendant's retirement.
B. We now turn to defendant's contention that the judg e erred in not terminating his alimony obligation on the effective date of his retirement, September 30, 2022. As noted above, we have no cau se to disturb the court's ruling that defendant established a change in circu mstances supporting the termination of alimony. We add the following brief comments.11 A- 0777

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Defendant contends the judge erred in ordering a step-down approach to the termination of alimony because plaintiff had no tice of defendant's intention to retire as of June 15, 2022, and the judge's find ings regarding the parties' reasonable expectations about defendant's retiremen t supported an immediate termination

. Contrary to defendant's contentions, the record su pports the trial judge's decision to implement a step-down approach before ultimately terminating alimony. Here, the j udge 's decision to add a step-down provision was based on the presumption that it would have bee n a "shock to the system" for plaintiff's alimony to be abruptly terminated. Consequently, a "soft landing" was required. Based on the record, the judge appro priately ordered a two-step modification of alimony before plaintiff's alimony was terminat ed . We, therefore, perceive no abuse of discretion in the j udge's determination.
III. Both parties argue the judge erred in not awarding counsel fees. Plaintiff claims the judge erred in determining the parties' financials were in "parity" because defendant's CIS showed that he was in a bet ter financial position. In contrast, defendant argues plaintiff's application was made in bad faith because she expected defendant to continue to work or deple te his assets, as found by the judge. We are not persuaded by the parties' ar guments.12 A- 0777

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An award "of counsel fees is discretionary, and wi ll not be reversed except upon a showing of an abuse of discretion." Barr v. Barr, 418 N.J. Super. 18, 46 (App. Div. 2011) (citing Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444 (2001)). Rule 5:3 -5(c) lists nine factors the court must consider wh en deciding to award fees. In the opinion, Judge Mennen analyzed Rule 5:3 -5(c) and Rules of Professional Conduct 1.5(a) in assessing the rea sonableness of each party's position and clearly stated "factual findings and correlate[d] t hem with the relevant legal conclusions." Curtis v. Finneran, 8 3 N.J. 563, 570 (1980); see R. 1:7 -4(a). Thus, we are satisfied the record supports the judg e's determination. Affirmed.